Citation Nr: 1341019 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 12-27 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for aortic aneurysm status post dissection, grafting, and valve replacement. 2. Entitlement to service connection for shin splints of the left leg. 3. Entitlement to service connection for shin splints of the right leg. REPRESENTATION Appellant represented by: Michael V. Quatrini, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2002 to August 2006, to include service in the Persian Gulf for which he received the Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. After certification of the appeal to the Board, the Veteran submitted the March 2013 and April 2013 medical opinions discussed in detail below, along with written waivers of the RO's initial consideration. A Board hearing was held before the undersigned Veterans Law Judge by videoconference from the RO in April 2013. A transcript of the hearing is of record. During the hearing, the Veteran and his representative withdrew the appeal as to the issues of shin splits of the left and right legs. A review of the Virtual VA and VBMS electronic claims files does not reveal any additional documents pertinent to the present appeal, with the exception of the Board hearing transcript noted above. FINDINGS OF FACT 1. The Veteran's aortic aneurysm status post dissection, grafting, and valve replacement is related to active service. 2. On April 24, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and his authorized representative that a withdrawal of the appeal as to the issue of entitlement to service connection for shin splints of the left leg is requested. 3. On April 24, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and his authorized representative that a withdrawal of the appeal as to the issue of entitlement to service connection for shin splints of the right leg is requested. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, aortic aneurysm status post dissection, grafting, and valve replacement was incurred in service. 38 U.S.C.A. §§1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for withdrawal of the appeal by the Veteran as to the claim of entitlement to service connection for shin splints of the left leg have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. The criteria for withdrawal of the appeal by the Veteran as to the claim of entitlement to service connection for shin splints of the right leg have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, in the decision below, the Board has granted the Veteran's claim of entitlement to service connection for aortic aneurysm status post dissection, grafting, and valve replacement. Therefore, the benefit sought on appeal has been granted in full, and regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Moreover, as discussed below, the Veteran has withdrawn his appeal for the issues of entitlement to shin splints of the right and left legs. Thus, no further discussion of the VCAA is necessary with respect to those issues. Aortic Aneurysm Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may also be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As endocarditis (including all forms of valvular heart disease) is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including endocarditis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is warranted for aortic aneurysm status post dissection, grafting, and valve replacement. The Veteran contends that, although his heart disorder did not clearly manifest until approximately two years after service, the onset of heart symptomatology occurred during his active service. In this regard, the Veteran reported that he experienced chest discomfort on exertion, to include during physical training, as well as headaches. See, e.g., October 2009 claim; April 2013 Bd. Hr. Tr. at 6. As an initial matter, the Board notes that the Veteran's service treatment records are incomplete, to include any entrance and separation examinations and treatment records from the Veteran's basic training and two overseas tours. In addition, the RO has determined that the complete service treatment records are unavailable. See October 2009 RO request to the Records Management Center (RMC) and response; February 2010 formal finding of unavailability file memorandum and notice letter to Veteran. The United States Court of Appeals for Veterans Claims (Court) had held that in cases where a veteran's service treatment records were unavailable, through no fault of the veteran, there was a "heightened duty" to assist the veteran in the development of the case. See generally McCormick v. Gober, 14 Vet. App. 39, 45-49 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran's available service treatment records do not document any complaints, treatment, or diagnosis of a heart disorder, such as an aortic aneurysm, dissection, or valvular heart disease. A February 2004 dental service treatment record shows that the Veteran was currently taking Norvasc for hypertension; the Veteran's in-service health questionnaire for dental treatment also reflects this treatment. An April 2006 service treatment record shows that the Veteran was seen for a physical profile review. Prior to examination at that time, the record showed a normal "PULHES" profile with the exception of a "3" in the "P" category. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) ("PULHES" profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service); the "P" stands for the level of physical capacity or stamina). The Veteran recalled requiring a waiver at MEPS (service entrance processing) for hypertension. It was noted that he was prescribed hypertension medication. The Veteran related usually good control of his hypertension, although it was elevated that day. He also indicated that the disorder did not limit his ability to perform his military duties. Following examination, the assessment was essential hypertension. The physician noted review of the medical records and stated that a "properly granted waiver" was present in the Veteran's chart awarding a PULHES of 111111. The physician updated the Veteran's PULHES profile in the database to "1" in each category, again noting the waiver. A June 2006 service treatment record for an eye examination shows a reported history of hypertension "x 04." The Veteran established post-service care with VA in November 2006, at which time he reported a history of headaches. The treatment provider noted the history of hypertension in the Veteran's service treatment records for which a current impression with ongoing medication was provided. The earliest record of post-service treatment and complaints for the heart is in September 2008 VA treatment records. After initial admission for complaints of chest pain (worse with activity) several days earlier, the Veteran returned to the hospital due to abnormal echocardiogram results and underwent emergency cardiothoracic surgery. The postoperative diagnosis was acute type A aortic dissection involving the aortic root, the arch, and proximal descending thoracic aorta; ascending aortic aneurysm with a diameter of 5.6 centimeters; and moderate aortic regurgitation. During the following month, the Veteran returned and underwent a second surgery for pericardial effusion (right thoracoscopic pericardial window) with continued monitoring and treatment thereafter. See, e.g., September and October 2008 operation reports; September and October 2008, February and July 2009 VA treatment records. A November 2008 VA treatment record shows an assessment of history of aortic dissection likely related to hypertension. In a March 2013 written submission, Dr. Y.N. (initials used to protect privacy) recalled examining the Veteran in 2002 for an opinion on hypertension "purportedly found" upon service entrance examination. Dr. Y.N. indicated that, following a series of tests and a physical examination including blood pressure readings, he determined that the Veteran did not suffer from physiologic hypertension at that time. Consequently, Dr. Y.N. filled out the waiver indicating that the Veteran did not have hypertension and was medically cleared to enlist. Dr. Y.N. also stated that it was his opinion that the Veteran did not have hypertension or any cardiac adverse condition when he examined him and filled out the waiver in 2002. In an April 2013 written submission, Dr. J.F. determined that the Veteran's military service, specifically the emotional and physical stress therein, more likely than not caused formation of the aortic aneurysm, which led to a subsequent tear in the aorta (dissection) and requirement for emergency surgical repair. In so finding, the physician noted that, while the dissection of the aneurysm was an acute event, the aneurysm most likely developed in the years leading up to the September 2008 emergency room visit, as an aneurysm typically takes years to enlarge. The physician indicated that, in someone young like the Veteran, the cause of the aneurysm is usually a congenital defect of the aorta, but that there was no evidence of such a condition in this case. Dr. J.F. also noted that the Veteran was found not to be hypertensive prior to enlistment based on Dr. Y.N.'s findings; however, even if the Veteran had preexisting hypertension, the mild degree of blood pressure elevation would not explain formation of a large aneurysm in an otherwise healthy young male without a congenital condition and no family history of aneurysms. The physician indicated that the extreme emotional and physical stress the Veteran experienced during his service would cause high spikes in blood pressure, to include during exercise, with such pressure putting stress on the walls of the aorta, contributing to aneurysm formation. In addition, the physician noted that the Veteran's disruption of the natural sleep cycle during service was a known cause of worsening hypertension. Finally, Dr. J.F. indicated that the Veteran's reported chest pain during physical training drills, which resolved after exercise, was a classic symptom of cardiac disease, and specifically, a symptom of an expanding aneurysm. In rendering this opinion, Dr. J.F. provided a detailed account of the Veteran's history before, during, and after service, based on review of the claims file, the letter from Dr. Y.N., and a history as provided by the Veteran during a physical examination at that time. During the April 2013 Board hearing, the Veteran testified that he did not have any heart problems prior to service and that he was medically cleared for service as to the question of possible hypertension with a waiver from Dr. Y.N. He started noticing symptoms, to include discomfort in his upper chest upon exertion during physical training and other similar exertion, as well as headaches, during service, which continued thereafter. He reported that he received medication for hypertension and headaches during service, but indicated that he did not seek treatment for the chest discomfort, as he did not think much of the symptoms at the time. He also testified that he was exposed to gunfire and nearby explosions and carried his gear and various weapons during the course of his first deployment. He indicated that his second deployment, while not as physically stressful, was still emotionally stressful. Following service, the Veteran testified that he noticed daily discomfort in his chest while walking from nursing school, which he dismissed until the sudden onset of extreme, knife-like pain in September 2008, as discussed above. See Bd. Hrg. Tr. at 4-10, 14, 18-20. In regard to the issue of hypertension, as noted above, there is evidence of record that raises the question of whether hypertension existed prior to the Veteran's military service. Every veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions . . . ." 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disease or injury was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). In this case, the Veteran's entrance examination is unavailable for review. Therefore, the presumption of soundness applies because there is no record of a physical examination at the time the veteran enlisted in the service. See Doran v. Brown, 6 Vet. App. 283, 286 (1994) (where there was no entrance examination report of record because it was presumed to have been lost in a fire, the presumption of soundness attached as reflected by the conclusion that it had been rebutted by clear and unmistakable evidence of the pre-service existence of the disability). Moreover, the record does not contain clear and unmistakable evidence of hypertension prior to service. In this regard, the April 2006 service treatment record confirms that the Veteran received a medical waiver at enlistment for hypertension. At that time, the in-service treatment provider indicated that the waiver was properly granted and accordingly revised the PULHES profile, as discussed above. Moreover, in March 2013, Dr. Y.N. stated that examination of the Veteran in 2002 showed that the Veteran did not have hypertension or any cardiac adverse condition on examination at that time. The Board also notes that the dental health questionnaire showing a history of high blood pressure and related medication was revised on a continuing basis during the course of the Veteran's active service, and it is unclear when this specific history was added. Nevertheless, in summary, the Board finds that there is insufficient (i.e. clear and unmistakable) evidence to show that hypertension preexisted service. As such, the presumption of soundness has not been rebutted. The Veteran is presumed to have been sound at the time of entry into active service. The Board notes that it does not necessarily follow, however, that the unrebutted presumption of soundness will lead to service connection. The Veteran must still demonstrate a current disability and a nexus between the current disability and an injury or disease in service. See Holton, 557 F.3d at 1367; Dye v. Mansfield, 504 F.3d 1289, 1292-93 (Fed. Cir. 2007). Accordingly, the Board now turns to the question of whether the Veteran's currently diagnosed heart disorder is related to service. In this regard, the record shows that the Veteran has a current diagnosis of a heart disorder. The Board also finds that the Veteran's report of the onset of his symptoms during service is credible. Furthermore, the record raises a reasonable doubt as to whether the Veteran's heart disorder is related to his service. As noted above, the Veteran's service treatment records do not document any complaints, treatment, or diagnosis of a heart disorder, such as an aortic aneurysm or dissection or other valvular heart disorder, to include as a result of the noted in-service hypertension. However, laypersons are competent to report observable symptoms and experiences, such as chest discomfort, and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the Veteran to be competent and credible in his statements regarding his in-service symptoms and the history of symptomatology, and there is no reason to doubt him other than the lack of contemporaneous medical evidence. See Buchanan, 451 F.3d at 1336-37. In this regard, the reported history has remained consistent throughout the course of the appeal, and there is no evidence of any intercurrent causes. Moreover, during the Board hearing, the Veteran admitted that his second deployment was less physically stressful. The Board notes that this statement is essentially one against his own interest, which lends credibility to the Veteran's overall reported history. In addition, Dr. J.F. incorporated the lay reports of these early symptoms and the Veteran's reported service circumstances into his opinion. A medical opinion formed on the basis of the Veteran's reported medical history cannot be rejected without the Board first finding that the Veteran's allegations are not credible. Coburn, 19 Vet. App. at 432-33. Here, the Board has found that the Veteran's statements of symptomatology during service are competent and credible, and the opinion provides that these symptoms were an early indication of the development of the Veteran's aortic aneurysm with resulting dissection, which is a disorder that required time to develop to the level as manifest in September 2008. Moreover, while Dr. J.F. considered the medical waiver for hypertension on enlistment provided by Dr. Y.N. in reaching the decision, he also determined that the Veteran would have developed the heart disorder regardless of any preexisting hypertension, given the Veteran's in-service circumstances with emotional and physical stress. In summary, Dr. J.F. provided based his opinion on a review of the claims file and an examination of the Veteran, accurately characterized the evidence of record, and provided a clear rationale. As such, the Board finds that this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board also notes that there is no medical evidence showing otherwise. The United States Court of Appeals for Veterans Claims (Court) has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In this regard, the Board notes that the VA treatment records show that hypertension was the causative basis for the heart disorder without further detail, which is evidence that is not clearly for or against the claim. In addition, the record, to include the VA treatment records, reflects that the Veteran had a history of hypertension during service (as opposed to post-service circumstances suggesting an intervening cause), which does not suggest a different outcome in this case. See, e.g., November 2006 VA treatment record. Based on the foregoing, the Board finds that there is at least an approximate balance of positive and negative evidence related to the Veteran's claim. Specifically, as discussed above, the record raises a reasonable doubt as to whether the Veteran's heart disorder is related to his active service. Accordingly, resolving all reasonable doubt in the favor of the Veteran, the Board concludes that service connection for aortic aneurysm status post dissection, grafting, and valve replacement is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Shin Splints The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, the Veteran's authorized representative withdrew the issues of entitlement to service connection for shin splints of the right and left legs during the April 2013 hearing, and the Veterans Law Judge confirmed this request with the Veteran at that time. See Bd. Hrg. Tr. at 19-20. Given that there remain no allegations of errors of fact or law for appellate consideration as to this portion of the appeal, the Board does not have jurisdiction to review these issues, and they are dismissed. ORDER Subject to the provisions governing the award of monetary benefits, service connection for aortic aneurysm status post dissection, grafting, and valve replacement is granted. The appeal as to the issue of entitlement to service connection for shin splints of the left leg is dismissed. The appeal as to the issue of entitlement to service connection for shin splints of the right leg is dismissed. ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs